Former First Minister Arlene Foster is seeking to set aside a decision that she should face a personal legal challenge over funding for legacy inquests in Northern Ireland, the High Court heard today.
Attorney General John Larkin QC has been instructed to argue that the DUP leader should be a notice party rather than respondent in proceedings brought by the widow of an innocent civilian shot dead along with eight IRA men.
Brigid Hughes is seeking to judicially review the administrations at Stormont and Westminster for failing to release the financial resources necessary to hold inquests into Troubles-related killings.
Her husband, Anthony, died after being unwittingly caught up in the SAS ambush of an IRA unit at Loughgall, Co Armagh in May 1987.
In an extraordinary move, Mrs Foster was joined as a further respondent in the challenge amid claims that she blocked Executive discussion of a funding plan to clear the backlog of legacy inquests.
Lord Chief Justice Sir Declan Morgan has called for urgent action to fund his blueprint for having all cases dealt with within five years.
With the cost of the plan estimated at around £10m, the government has said resources will not be released until political consensus is reaching on dealing with the past.
Part of the legal challenge involves allegations of political discrimination being made against Mrs Foster.
It was alleged that a press report where Mrs Foster referred to a perceived skewing towards inquests into state killings pointed to a discriminatory approach.
A reference to innocent victims and killings by paramilitary groups indicated a reliance on political opinion about different categories of cases, it was contended.
At a hearing last month the judge, Sir Paul Girvan, questioned why the former First Minister was not a respondent due to the nature of the allegations being made against her.
Counsel for Mrs Hughes then sought to have Mrs Foster joined in a personal capacity - a highly unusual move in judicial review proceedings normally centred on departmental and ministerial decisions.
With the application granted administratively, a new twist emerged in court today.
Barrister Donal Sayers, brought into the case with the Attorney General and solicitor John McBurney, confirmed they are seeking to have that set aside.
“The position is that the former First Minister should not be joined as a respondent to the proceedings,” he said.
Sir Paul replied that the step had been taken to enable her to participate and ensure no unfairness.
“A case has been made which is critical of her actions in the matter,” he said.
“If the former First Minister doesn’t want to take part in the proceedings she takes the consequences and if it makes an adverse finding she can’t complain.”
But Mr Sayers advanced an alternative option of having her instead granted notice party status.
Mrs Foster rejects allegations of discrimination, and is expected to insist she was involved in macropolitical attempts to find an overall solution to legacy issues.
Objections to being made one of the respondents are based on her no longer holding office due to the collapse of the Stormont power-sharing regime.
Even if the legal challenge ultimately succeeds, she would not be in a position to comply with any orders made by the court.
Granting the DUP leader notice party instead would enable her to take part in the case and still provide an account of her actions, her lawyers contend.
A further hearing next month is set to determine whether Mrs Foster’s status should be changed.
In an apparent nod to her ongoing involvement in attempts to break the political deadlock at Stormont, Mr Sayers added: “There are considerable pressures on the former First Minister’s time at the moment.”